When FirstEnergy Solutions closes the Perry nuclear power plant east of Cleveland, the Davis-Besse nuclear plant near Toledo and the Beaver Valley nuclear plant near Pittsburgh it will have up to 60 years to decommission the reactors and clean up the land at a cost of billions of dollars. A coalition of consumer and environment groups is arguing that the decommissioning trust funds are inadequate, that FES will not be able to begin decommissioning for years after the plants are closed and that parent company FirstEnergy Cop. must be held responsible to make up the funding deficit.(Plain Dealer file)

CLEVELAND, Ohio -- The trust funds that FirstEnergy created years ago to pay for the demolition of its nuclear power plants and clean-up are no longer adequate, a coalition of consumer and environmental groups is arguing today at the Nuclear Regulatory Commission.

Citing research done by an independent investment consulting company, lawyers for the Midwest-based Environmental Law and Policy Center and a veteran nuclear reactor expert have petitioned the NRC to take another look at the trust funds.

The NRC's Petition Review Board is not expected to make a decision on the ELPC request immediately, said an agency spokesman.

The ELPC is arguing that as of Dec. 31, 2016, the trust funds were nearly $2.75 billion short. That's the last publicly available decommissioning fund data.

And that date was before FENOC and plant owner FirstEnergy Solutions filed for Chapter 11 bankruptcy protection from creditors who were owed more than an estimated $2 billion on March 31 of this year.

Still, on April 4, the NRC issued a statement declaring that the company's decommissioning funds met NRC regulations.

A spokesman for FES/FENOC had no comment, other than to cite the April 4 NRC statement.

Howard Learner, a lawyer and executive director of the ELPC, said the announced shutdown of the power plants by 2021 means the funds will have even less time to grow before they are needed to pay for decommissioning.

He said the shortfall will probably mean that the company will delay decommissioning the reactors after it shuts them down and instead move them into an NRC category called SAFSTOR.

In other words, FENOC engineers and other employees will remove the radioactive fuel rods from the reactors, place them in the spent fuel cooling pool, and lockup the plants while the fuel becomes less radioactive.

That could go on for years, while the investment funds grow and the NRC keeps an eye on the still-guarded power plants. FENOC has up to 60 years to complete the decommissioning.

The use of SAFSTOR would not be unique, however, and the NRC does not advise against the step before actual decommissioning begins because it is safer for workers who must eventually deal with the fuel rods and place them in reinforced concrete casks. What will happen ultimately to the spent fuel is a federal issue that has not been resolved.

The ELPC also wants the NRC to hold parent company FirstEnergy as the company ultimately responsible for the decommissioning of the nuclear plants.

FirstEnergy in 2017 began maintaining that decommissioning responsibilities remained with FENOC, not FirstEnergy.

"FENOC is responsible, as the licensee for those (nuclear) sites, for the safe shutdown of those facilities," Charles Jones, FirstEnergy CEO, told analysts during a conference call.

The ELPC has retained Peter Bradford, a former NRC commissioner, a commissioner on several state public utility commissions and considered an expert on nuclear matters to help present its case to the NRC.

to the Petition Review Board, Bradford points out that the latest FirstEnergy Corp. filings with the SEC indicate that FE is taking responsibility only for the remains of the reactor at Three Mile Island, which partially melted down in 1979. FE had to accept ownership of TMI when it purchased another power plant corporation in 2002.

Bradford wrote that state and local governments strongly prefer that the reactors in shutdown nuclear plants be decommissioned as quickly as possible and the land made ready for other uses.

"Few communities hosting nuclear plants (and none where the plants were sited before the 1980s) were told that decommissioning might last for many decades after the plants were closed," he wrote in testimony submitted to the NRC.

"The SAFSTOR option, legal though it may be, is a breach of the faith of any state or locality that expected to be able to devote the entire nuclear plant site to other uses within a decade or two of the plant closing."

Even if the NRC accepts the arguments in the ELPC petition and rules that the trust funds for the reactors are too small, requiring FENOC to contribute additional money could be a problem that will have to be solved by federal bankruptcy court.

Once a Chapter 11 bankruptcy petition is filed, legal actions that began before the filing are automatically stopped. Judge Alan Koschik last week approved a temporary agreement between FES/FENOC and the ELCP allowing the ELPC to make its case before the NRC.

At the same time, the Department of Justice, representing the NRC, insisted that the ELPC did not really have an official case pending before the NRC, only an appointment to appear before the Petition Review Board to discuss its claim.

If the judge were to accept that reasoning, the NRC could find itself in line with other unsecured creditors if it were to require additional money for the trust funds.